Reso 6922TR-2020-036
CITY OF CUPERTINO
10300 Torre Avenue
Cupertino, California 95014
RESOLUTION NO. 6922
OF THE PLANNING COMMISSION DENYING AN APPEAL AND
UPHOLDING THE DIRECTOR OF COMMUNITY DEVELOPMENT’S
DECISION TO ALLOW THE REMOVAL AND REPLACEMENT OF 15 LIVING
TREES AND TWO DEAD TREES AT THE COMMONS OF CUPERTINO
LOCATED ALONG UNITED PLACE, FREEDOM DRIVE, PATRIOT WAY,
CONGRESS PLACE, AND SENATE WAY.
SECTION I: PROJECT DESCRIPTION
Application No.: TR-2020-036
Applicant: Evan Fuller for Grayson Community Managements Services
(Commons at Cupertino HOA)
Location: along United Place, Freedom Drive, Patriot Way, Congress Place,
and Senate Way
SECTION II: FINDINGS:
WHEREAS, the City of Cupertino received an application for a Tree Removal Permit to
allow for the removal and replacement of 15 living trees ad 2 dead trees; and
WHEREAS, the project is determined to be categorically exempt from the California
Environmental Quality Act (CEQA) pursuant to Section 15304(b) of title 14, California
Code of Regulations, §§ 15000 et seq. (the “CEQA Guidelines”); and
WHEREAS, the necessary notices were given and the comment period for the application
was provided as required by the Procedural Ordinance of the City of Cupertino; and
WHEREAS, the Director of Community Development made the findings required under
Section 14.18.180(A)(1) and 14.18.180(A)(3) and approved the application with conditions
on January 20, 2021; and
WHEREAS, the notice of decision was mailed to the appropriate parties, including the
applicant and any person who contacted City staff with comments during the comment
period, notifying them about the possibility of appealing a project; and
WHEREAS, the Planning Commission of the City of Cupertino received an appeal of the
Community Development Director’s approval of the Tree Removal Permit; and
Resolution No. 6922 TR-2020-036 March 23, 2021
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WHEREAS, the necessary public notices have been given as required by the Procedural
Ordinance of the City of Cupertino, and the Planning Commission has held at least one
public hearing in regard to the appeal; and
WHEREAS, the appellants have not met the burden of proof required to support said
appeal; and
WHEREAS, the Planning Commission has considered the amended conditions of
approval; and
WHEREAS, the Planning Commission finds as follows with regard to this application:
1.That the tree or trees are irreversibly diseased, are in danger of falling, can cause
potential damage to existing or proposed essential structures, or interferes with
private on-site utility services and cannot be controlled or remedied through
reasonable relocation or modification of the structure of utility services.
Protected trees #158, #378, and #284 were found to be dead or irreversibly diseased, and
could not be remedied through the reasonable relocation or modification of the structure of
utility services.
2.That the protected tree(s) are a detriment to the subject property and cannot be
adequately supported according to good urban forestry practices due to the
overplanting or overcrowding of trees on the subject property.
The protected trees have been demonstrated through multiple arborist reports to be planted
in locations that are a detriment to the subject property due to risk of future hazard or
potential property damage and cannot be supported according to good urban forestry
practices.
NOW, THEREFORE, BE IT RESOLVED:
That after careful consideration of maps, facts, exhibits, testimony and other evidence
submitted in this matter, subject to the conditions which are enumerated in this Resolution
beginning on Page 3 thereof,
The Planning Commission DENIES the appeal of an application for a Tree Removal Permit,
Application no. TR-2020-036, and UPHOLDS the Administrative approval of the Tree
Removal Permit, subject to the amended conditions of approval herein. The Planning
Commission also finds that the subconclusions upon which the findings and conditions
specified in this resolution are based are contained in the Public Hearing record concerning
Application no. TR-2020-036 as set forth in the Minutes of Planning Commission Meeting
of March 23, 2021 and are incorporated by reference as though fully set forth herein.
Resolution No. 6922 TR-2020-036 March 23, 2021
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SECTION III: CONDITIONS ADMINISTERED BY THE COMMUNITY
DEVELOPMENT DEPT.
1.APPROVED PROJECT
This approval for tree removal is based on the arborist report prepared by Evan Fuller
(ISA Board Certified Arborist, WE-12508A) consisting of fifteen (15) pages, including
a removal and replacement plan, and a replacement justification.
2. TREE REPLACEMENT
The proposed replacement trees are as follows:
Removed
Tree
Number
Removed Tree
Species
Removed
Tree Size
(DBH)
Replacement Tree
Species
Replacement
Tree Size
#104 London
Planetree
8” Muskogee Myrtle 24” Box
#105 London
Planetree
10” Natchez Crape
Myrtle
24” Box
#106 London
Planetree
11” Coast Live Oak 24” Box
#154 Japanese
Maple
1” Natchez Crape
Myrtle
24” Box
#158 Flowering
Cherry
8” Brisbane Box 24” Box
#204 Mayten 6.4” Natchez Crape
Myrtle
24” Box
#211 Coast
Redwood
37” Marina Madrone 36” Box
#219 Canary Island
Pine
17” Maidenhair Tree 36” Box
#220 Canary Island
Pine
19” Shumard Oak 36” Box
#284 European
White Birch
7” Sweet Bay 24” Box
#294 Canary Island
Pine
30” Chinese Pistache 36” Box
#321 Sweetgum 15” Coast Live Oak 36” Box
#356 European
White Birch
6” Maidenhair Tree 24” Box
Resolution No. 6922 TR-2020-036 March 23, 2021
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Removed
Tree
Number
Removed Tree
Species
Removed
Tree Size
(DBH)
Replacement Tree
Species
Replacement
Tree Size
#378 Crape Myrtle 1” Sweet Bay 24” Box
#380 Canary Island
Pine
34” Shumard Oak 36” Box
#381 Japanese
Maple
11.58” Sweet Bay 24” Box
#382 Purple leaf
plum
8.12” Brazilian Pepper 24” Box
The proposed replacements total seventeen (17) replacement trees, to be planted on
the subject property within 30 days of tree removal. The applicant shall provide an
updated replacement plan for review and approval by the City prior to tree planting.
The applicant shall provide the Department of Community Development adequate
documentation, including but not limited to photographs, receipts or invoices, to
verify that the replacement trees have been planted.
In the event the applicant is unable to plant the approved replacement trees, the
applicant may propose alternative adequate tree replacements for trees proposed to
be removed. The final number, location, size, and type of trees shall be reviewed and
approved by the Director of Community Development, in consultation with the
City’s Consulting Arborist, prior to tree replanting.
3.PROTECTED TREES
The applicant understands that replacement trees may not be removed without a Tree
Removal Permit and that they shall be responsible for ensuring the proper
maintenance and care of the tree. The applicant shall also disclose the location and
species of all protected trees on site upon sale of the property.
4.DUST CONTROL
The following construction practices shall be implemented during all phases of
construction for the proposed project to prevent visible dust emissions from leaving
the site:
a.Water all active construction areas at least twice daily and more often during
windy periods to prevent visible dust from leaving the site; active areas adjacent
to windy periods; active areas adjacent to existing land uses shall be kept damp
at all times, or shall be treated with non-toxic stabilizers or dust palliatives.
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b.Cover all trucks hauling soil, sand, and other loose materials or require all trucks
to maintain at least 2 feet of freeboard;
c.Pave, apply water at least three times daily, or apply (non-toxic) soil stabilizers
on all unpaved access roads, parking areas and staging areas at construction sites.
d.Sweep streets daily, or more often if necessary (preferably with water sweepers)
if visible soil material is carried onto adjacent public streets.
e.The applicant shall incorporate the City’s construction best management
practices into the building permit plan set.
5.INDEMNIFICATION AND LIMITATION OF LIABILITY
As part of the application, to the fullest extent permitted by law, the applicant shall
agree to indemnify, defend with the attorneys of the City’s choice, and hold harmless
the City, its City Council, and its officers, employees, and agents (collectively, the
“indemnified parties”) from and against any liability, claim, action, cause of action,
suit, damages, judgment, lien, levy, or proceeding (collectively referred to as
“proceeding”) brought by a third party against one or more of the indemnified parties
or one or more of the indemnified parties and the applicant related to any Ordinance,
Resolution, or action approving the project, the related entitlements, environmental
review documents, finding or determinations, or any other permit or approval
authorized for the project. The indemnification shall include but not be limited to
damages, fees, and costs awarded against the City, if any, and cost of suit, attorneys’
fees, and other costs, liabilities, and expenses incurred in connection with such
proceeding whether incurred by the Applicant, the City, or the parties initiating or
bringing such proceeding.
The applicant shall agree to (without limitation) reimburse the City its actual
attorneys’ fees and costs incurred in defense of the litigation. Such attorneys’ fees and
costs shall include amounts paid to the City’s outside counsel and shall include City
Attorney time and overhead costs and other City staff overhead costs and any costs
directly related to the litigation reasonably incurred by City. The applicant shall
likewise agree to indemnify, defend, and hold harmless the indemnified parties from
and against any damages, attorneys’ fees, or costs awards, including attorneys’ fees
awarded under Code of Civil Procedure section 1021.5, assessed or awarded against
the indemnified parties. The Applicant shall cooperate with the City to enter a
Reimbursement Agreement to govern any such reimbursement.
The Applicant shall agree to (without limitation) reimburse the City for all costs
incurred in additional investigation or study of, or for supplementing, redrafting,
revising, or amending, any document (such as an Environmental Impact Report,
negative declaration, specific plan, or general plan amendment) if made necessary by
Resolution No. 6922 TR-2020-036 March 23, 2021
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proceedings challenging the project approvals and related environmental review, if
the applicant desires to continue to pursue the project.
The Applicant shall agree that the City shall have no liability to the Applicant for
business interruption, punitive, speculative, or consequential damages.
6.NOTICE OF FEES, DEDICATIONS, RESERVATIONS OR OTHER EXACTIONS
The conditions of Project Approval set forth herein may include certain fees,
dedication requirements, reservation requirements, and other exactions.
PASSED AND ADOPTED this 23rd day of March 2021, Regular Meeting of the Design
Review Committee of the City of Cupertino, State of California, by the following vote:
AYES: COMMISSIONERS: Chair Wang, Saxena, Kapil, Madhdhipatla
NOES: COMMISSIONERS: Vice Chair Scharf
ABSTAIN: COMMISSIONERS: none
ABSENT: COMMISSIONERS: none
ATTEST: APPROVED:
Piu Ghosh R Wang
Planning Manager Chair, Planning Commission